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November 14, 1986

RICHARD E. LYNG, Secretary, U.S. Department of Agriculture, Defendant

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 As described more fully in a Memorandum filed September 30, 1985, *fn1" this matter involves a challenge to the constitutionality of a 1981 amendment *fn2" to the Food Stamp Act of 1977. *fn3" That amendment precludes a household from becoming eligible for food stamps if a member of that household is on strike because of a labor dispute. *fn4" According to a Senate Committee report, the amendment is designed to promote government neutrality in labor disputes and to promote the food stamp program's "underlying policy of tying receipt of food stamps to the ability and willingness to work." S. Rep. No. 139, 97th Cong., 1st Sess. 62 (1981).

 Food stamps are issued not to an individual but to a household, consisting of the persons who normally purchase food and eat together. The law presumes that a close family of husband, wife and children purchase food and eat together. See Lyng v. Castillo, 477 U.S. 635, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986). As a result, the striker amendment has the effect of denying food stamps not only to a striker, but also to anyone with whom the striker actually or presumptively purchases and shares food.

 Plaintiffs are two unions and several individual union members *fn5" who have been ineligible for food stamps because they are or have been on strike. They have challenged the striker amendment as unconstitutionally violative of their due process, equal protection, and First Amendment rights. Their original pleadings sought a preliminary injunction, but did not include any motion for summary judgment. Defendant moved to dismiss plaintiffs' complaint, but filed no other dispositive motion. The 1985 Memorandum denied defendant's motion to dismiss and plaintiffs' motion for a preliminary injunction, but, anticipating summary judgment motions, concluded:

Once plaintiffs establish the facts proffered about the effects of the anti-striker statute, they may well prevail on the merits of their claim that the anti-striker amendment violates rights guaranteed to plaintiffs by the First Amendment to associate with their families, their unions and fellow union members.

 1985 Memorandum at 1253. Since then, the parties have conducted extensive discovery and have filed cross-motions for summary judgment, accompanied by appropriate statements of undisputed material facts and statements of genuine issues. Plaintiffs' Motion for Summary Judgment (filed December 20, 1985); Defendant's Motion for Summary Judgment (filed February 24, 1986). Consideration of the issues thereby framed was delayed pending the Supreme Court's decision in Lyng v. Castillo, supra. After the Lyng opinion was rendered, the parties exchanged supplemental briefs addressing Lyng's implications for this case. The cross-motions are now ripe for decision.


 The exchange of statements of undisputed facts which accompanied the cross-motions for summary judgment enables the Court to ratify and find the facts stated in the 1985 Memorandum and the following additional undisputed material facts:

 1. The plaintiff labor unions are labor organizations which exist for the purpose, inter alia, of advancing the economic and political interests of their members. Plaintiffs' Statement of Material Facts [hereinafter "Plaintiffs' Statement"] at para. 1; Defendant's Statement of Genuine Issues [hereinafter "Defendant's Statement"] at para. 1.

 2. The 1981 amendment to the Food Stamp Act of 1977 disqualifies households from obtaining food stamps if the household contains a member involved in a labor dispute, other than a lockout, unless the household was eligible for food stamps prior to the strike. Plaintiffs' Statement at para. 2; Defendant's Statement at para. 2.

 A 1981 House Report of the House Agriculture Committee commented:

In the 1977 Act, this Committee refused to eliminate strikers and the members of their households from consideration for participation [in the food stamp program] simply because they were on strike, since such an automatic exclusion seemed unfair and inequitable and would have involved the government in the non-neutral act of pressuring the worker to abandon the strike.

 H. Rep. 97-106(I) at 142 (1981), cited in Plaintiffs' Brief in Support of Motion for Summary Judgment at 7 n.3. Congress passed the striker amendment and the President signed it, despite the House Committee's reservations.

 3. A striker's household is disqualified for an indeterminate period, i.e., during the period of the strike. The disqualification has been administered in some cases to deny eligibility to strikers and their households even after the strikers have been permanently replaced. Plaintiffs' Statement at para. 11; Defendant's Statement at para. 11.

 4. In order to regain food stamp eligibility, strikers have the choice of leaving their households, abandoning a strike by returning to work, quitting their jobs, or attempting to persuade their unions to call off the strike. See 1985 Memorandum slip op. at 12; Plaintiffs' Statement at paras. 2, 3; Defendant's Statement at paras. 2, 3.

 5. The individual plaintiff Mary Berry was denied food stamps solely due to her status as a striker on August 27, 1984. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and UAW Local 985 of which Mary Berry is a member, have conducted a strike at Plymouth Stamping Company from September 9, 1980 until the present in opposition to the employer's demands for concessions and in opposition to the unfair labor practices of the employer. *fn6" Plaintiffs' Statement at para. 4; Defendant's Statement at para. 4.

 6. Individual plaintiff Mark Dyer and his household were denied food stamps in August, 1984, because of his status as a striker. Plaintiffs' Statement at para. 6; Defendant's Statement at para. 6.

 7. Individual plaintiff Barm Combs and his household were denied food stamps in September, 1984, because of his status as a striker. Plaintiffs' Statement at para. 6; Defendant's Statement at para. 6.

 Dyer and Combs were engaged in a United Mine Workers of America (UMWA) selective strike beginning August 1, 1984, which lasted until April 2, 1985, in an attempt to gain recognition for UMWA and in opposition to the alleged unfair labor practices of the Brush Creek Coal Company, Inc., and its alter egos. Compare Plaintiffs' Statement at para. 7 with Defendant's Statement at para. 7.

 8. Individual plaintiff Johnie Blake remained disqualified for food stamps even though her employer had replaced her and thereby foreclosed her opportunity to return to her job. See Affidavit of Johnie Blake at para. 10 (filed February 19, 1985).

 10. Some strikers who have been denied food stamps have voted to ratify or accept collective bargaining agreements which were less favorable than they personally believed appropriate. These votes were motivated by lack of wages as a result of being on strike and out of work and, to a lesser degree, lack of food stamps. Compare Plaintiffs' Statement at para. 10 with Defendant's Statement at para. 10.

 11. Barm Combs quit his strike at Brush Creek Coal Company and abandoned his union membership and thereafter received food stamps. Combs testified that:

I believe that if I had gotten food stamps to help my family during the strike against Brush Creek Coal Company, I could have stayed on the picket line throughout the strike and would not have abandoned my union membership.

 Affidavit of Barm Combs at 4. Moreover, he had to pay an initiation fee to the union when he eventually went back to work after the strike was over. Plaintiffs' Statement at para. 13; Defendant's Statement at para. 13. It is specifically found that the denial of food stamps to Combs' household was a proximate cause of his abandoning his association with his fellow strikers and his disassociation from his union.

 12. Even though Donald Gibson, a member of the AFL-CIO, was permanently replaced by his employer, he was disqualified from receiving food stamps solely because he was still a member of the union and still receiving strike pay from the union. Compare Plaintiffs' Statement at para. 12 with Defendant's Statement at para. 12.

 13. Anthony Tracy, a member of AFL-CIO, left a picket line to seek other work and lost his union membership and strike benefits. *fn7" Plaintiffs' Statement at para. 13.

 14. Under the constitutions of UAW and UMWA, a member who abandons a strike by crossing a picket line and returning to work can be subjected to charges, trial, and penalty, including expulsion from the union. Plaintiffs' Statement at para. 14; Defendant's Statement at para. 14.

 15. In addition, as more fully stated in Appendix A attached to the 1985 Memorandum, there are substantial differences between the treatment accorded to strikers by operation of the 1981 amendment to the Food Stamp Act and the treatment accorded to employees who quit their jobs voluntarily and not in concert with others. For example, a striker's household remains disqualified as long as the striker is on strike. 7 C.F.R. § 273.1(g) (1985). The household of an individual voluntary quitter is disqualified for only 90 days, after which food stamp eligibility is restored if the quitter seeks other work and the household remains otherwise eligible. 7 C.F.R. § 273.7(n)(1)(v). Moreover, even the original 90-day disqualification does not apply if the quitter can show "good cause" for leaving work. The individual quitter is entitled to a good cause hearing. Good cause includes discrimination by an employer or unreasonable work conditions. 7 C.F.R. § 273.7(n)(3)(i), (ii). There is no provision for such a good cause hearing or exception for strikers. In addition, a household including a voluntary quitter becomes ineligible only if the quitter is the primary breadwinner. 7 C.F.R. § 273.7(n)(1)(iv). The presence of any striker in a household disqualifies the entire household.


 In support of the summary judgment motion, plaintiffs argue that the 1981 amendment (1) impairs the constitutional rights of the individual plaintiffs to associate with their families and unions in violation of the First Amendment, and (2) impairs these rights without rationally furthering a legitimate governmental purpose in violation of the Due Process clause of the Fifth Amendment.

 The 1985 Memorandum, filed before the Supreme Court decided Lyng, anticipated that if plaintiffs proved what they alleged, they might well prevail on the merits. The threshold question at this stage of the proceeding, therefore, is whether Lyng established a standard of review which superceded that applied by the Supreme Court in Department of Agriculture v. Moreno, 413 U.S. 528, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973), and relied upon in the 1985 Memorandum.

 The Lyng plaintiffs challenged the constitutionality of the legislative presumption that parents, children and siblings who live together constitute a single "household" for food stamp purposes, whereas other groups of people, such as more distant relatives or groups of unrelated people, are treated as a household only if the members of the group customarily purchase food and prepare meals together. A lower court struck down this aspect of the food stamp system on the ground that it discriminated against households of close relatives.

 The Lyng Court determined that in that case the statutory definition of household should not be subjected to "heightened scrutiny" because close relatives are not a "suspect" or "quasi suspect" class. In this respect the Supreme Court noted that close family members have not as "a historical matter . . . been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless." 106 S. Ct. at 2729. Nor, said the Court, did the classification "'directly and substantially' interfere with family living arrangements and thereby burden a fundamental right." 106 S. Ct. at 2729, quoting Zablocki v. Redhail, 434 U.S. 374, 387, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). Further, the Court assumed, without apparent benefit of individualized evidence or trial court findings, that the "'household' definition does not order or prevent any group of persons from dining together" and that "in the overwhelming majority of cases it probably has no effect at all." 106 S. Ct. at 2730. The Court further assumed that

It is exceedingly unlikely that close relatives would choose to live apart simply to increase their allotment of food stamps, for the cost of separate housing would almost certainly exceed the incremental value of the additional stamps.

 106 S. Ct. at 2730.

 The Lyng Court distinguished its earlier decision in Moreno. Moreno had held unconstitutional a 1971 definition of "household" which distinguished between households composed entirely of persons who are related to one another and households containing one or more members who are unrelated to the rest. The Lyng Court identified the vice of the 1971 definition at issue in Moreno to be the fact that it not only disqualified groups of unrelated persons, but it also disqualified an otherwise eligible group of closely related persons solely because they shared their home with one or more unrelated persons. The Lyng Court also pointedly noted a House Committee observation that the proviso at issue in Moreno "was essentially an attempt to ban food stamp participation by communal households (so-called 'hippie communes')." Lyng, 106 S. Ct. at 2730 n.3.

 Suggesting that "heightened scrutiny" was in order in neither the Moreno nor the Lyng situation, the Lyng Court concluded that the classification there at issue, unlike that considered in Moreno, was valid because it "is rationally related to a legitimate government interest" in administrative convenience. Lyng, 106 S. Ct. at 2730.

 Insofar as the striker amendment denies food stamps to an individual striker, it is, in one sense, rationally related to legitimate legislative objectives -- requiring a person able to work to do so in order to receive food stamps and promoting government neutrality in strikes. See Califano v. Aznavorian, 439 U.S. 170, 58 L. Ed. 2d 435, 99 S. Ct. 471 (1978). However, as plaintiffs correctly suggest, even though "heightened scrutiny" may not be in order:

A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'

 Plaintiffs' Opposition at 4, quoting Reed v. Reed, 404 U.S. 71, 76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971), quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920); see also Mathews v. Lucas, 427 U.S. 495, 510, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976). Cf. Western & Southern Life Insurance Co. v. State Board of Equalization of California, 451 U.S. 648, 672, 68 L. Ed. 2d 514, 101 S. Ct. 2070 (1981); Weinberger v. Salfi, 422 U.S. 749, 772, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975). Accordingly, as stated preliminarily in the 1985 Memorandum, application of this standard to the undisputed facts developed in the exchange of summary judgment motions yields the following conclusions:

 (1) The disputed limitation on food stamps for strikers interferes or threatens to interfere with the First Amendment right of the individual plaintiffs to associate with their families, see Zablocki v. Redhail, supra, with their union, see Allee v. Medrano, 416 U.S. 802, 819 n.13, 40 L. Ed. 2d 566, 94 S. Ct. 2191 (1974), and with fellow union members, see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982); Professional Association of College Educators v. El Paso County Community College District, 730 F.2d 258 (5th Cir.), cert. denied, 469 U.S. 881, 105 S. Ct. 248, 83 L. Ed. 2d 186 (1984), as well as the reciprocal First Amendment right of each union plaintiff to its members' association with the union. It may be that a striker would not live apart from close family members in order to provide them with food stamps. See Lyng, 106 S. Ct. at 2730. But as defendant has bluntly stated, the striker has, as an alternative to leaving his family, the further options of quitting his job or returning to work. Pursuit of either of these alternatives would obviously sever or at least threaten his association with his union and fellow union members. Indeed, that is exactly what has happened to plaintiff Combs. Denial of food stamps to his family was a proximate cause of his disassociation from a strike, his fellow strikers, and his union.

 (2) The statute as administered interferes with strikers' right to express themselves about union matters free of coercion by the government. See Abood v. Detroit Board of Education, 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977). The defendant states that it anticipates that plaintiffs whose personal resources are depleted by loss of wages and denial of food stamps as a result of being on strike "can pressure their union to reach a settlement." Defendant's Response to Questions Nos. 3 and 4 of the Court's April 14, 1985 Notice to Counsel, and Reply to Plaintiffs' Response Thereto at 3 (filed June 28, 1985). As the Supreme Court stated in respect of infringement of the First Amendment's guarantee of religious freedom by denial of unemployment benefits to persons whose religious beliefs precluded Saturday work:

Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.

 Sherbert v. Verner, 374 U.S. 398, 404, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963). The same dynamic is present here and requires a conclusion that denial of food stamps to the individual plaintiffs violates their First Amendment right to associate and to express themselves freely in the course of that association.

 (3) As previously stated, the Lyng Court conspicuously distinguished the family that was the plaintiff there from groups which have as "a historical matter . . . been subject to discrimination" or are frequently in the stance of an unpopular political minority. Indeed, Lyng can be read as distinguishing Moreno, in part at least, because of a hint of animus against "hippies" reflected in the legislative history of the food stamp provision, 7 U.S.C. § 2012(e), struck down by the Moreno Court. Lyng, 106 S. Ct. at 2730 n.3. Strikers are a group which, at least as "a historical matter," has "been subject to discrimination," may be defined as a discrete group by "obvious and distinguishing characteristics," and has frequently been in the stance of an unpopular political minority. See generally, 18 Encyclopaedia Britannica, Trade Unionism 563, 565-66 (1974). Compare Lyng, 106 S. Ct. at 2729. There is judicially noticeable scholarly work evidencing discrimination in the form of public and official hostility against labor unions in general and strikers in particular. See, e.g., 18 Encyclopaedia Britannica, supra, at 565-66; I. Bernstein, The Lean Years: A History of the American Worker, 1920-1933 (1960). Indeed, labor unions and strikers have been the beneficiaries of extensive legislation designed to ameliorate historic discrimination against them. See, e.g., 29 U.S.C. § 104 (no injunction against ceasing or refusing to work) and 29 U.S.C. § 163 (preserving the right to strike). This history makes this case more nearly resemble Moreno than Lyng.

 (4) As spelled out in Appendix A to the 1985 Memorandum and summarized in the findings, there are significant and discriminatory differences between the treatment accorded a striker who stops work in concert with others and an individual who quits a job. Defendant's justification of the striker amendment as a device to deny food stamps to persons able to work is seriously weakened by these disparities. See Memorandum slip op. at 8, supra.

 (5) Finally, and critical to appraisal of rationality, the striker amendment impermissibly strikes at the striker through his family. See Plyler v. Doe, 457 U.S. 202, 220, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). For reasons of administrative convenience, food stamps are now issued to households, not to individuals. The striker amendment automatically cuts off food stamps not only from a striker but also from the entire household, including the striker's spouse and children. Legislation superimposing the striker provision onto the household stamp allocation system necessarily means that a striker who is a member of a household and who exercises his constitutionally protected rights to associate with his union and other members and to form and express his opinion about the merits of the strike sacrifices not only his own food stamps but also those of other members of his household, including infant children and the dependent elderly. In these circumstances, the "onus" of the striker's exercise of his associational rights falls as heavily on the innocent members of the family as it does on the striker himself. Whether intended or not, "legislation directing the onus of a parent's misconduct against . . . [a spouse and] children does not comport with fundamental conceptions of justice." Plyler v. Doe, supra, at 220; see also Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1972).

 Neither administrative convenience nor the desirability of maintaining government neutrality in labor disputes justifies the denial of food stamps to innocent members of a striker's household if this legislative purpose could be achieved by more narrowly tailored measures. See Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 28 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985). *fn8" ...

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